An Examination of Legal and Ethical
Issues
Surrounding Male Circumcision:
The Canadian Context

SUZANNE BOUCLIN
University of Ottawa

Despite shifts in the discourses
adopted and reinforced within the Canadian medical
community and indeed the international community,
routine neonatal male circumcision remains fairly
normalized. Focusing on the Canadian context, this
paper outlines the health-based and legal arguments
against elective infant male circumcision. Part one
provides an overview of routine neonatal male
circumcision and deals with the crucial distinction
between therapeutic and nontherapeutic intervention. It
locates elective neonatal male circumcision within the
nontherapeutic category. Part two outlines the
theoretical underpinnings for medical consent in the
Canadian context and discusses the legal requirements
for “informed consent.” The work of part
three is to tease out issues of parental consent and
whether parents should be entitled to substitute
consent for nonmedically necessary, routine, neonatal
circumcision.

On August 22, 2002, five-week-old Ryleigh
McWillis died from complications resulting from of an
elective circumcision. Two days after the procedure, his
parents found his diaper soaked with blood and rushed him to
a hospital in Penticton, British Columbia (Fournier, 2004). A
Coroner’s Report (2004) revealed that Ryleigh’s
lungs showed severe hemorrhage and areas of hyaline membrane
disease, which can arise from asphyxia, shock, and
acidosis.

Page 206

It is interesting to note that, after almost
three decades of explicit cautioning against routine
circumcision of newborn male infants by the Canadian
Paediatric Society (1975, 1996) and only weeks before
Raleigh’s death, the Canadian Medical Protective
Association (CMPA) issued a statement (CMPA 2002) that there
existed no unanimity within medical or legal communities
about the justification for circumcising infant males. Six
months before that, Saskatchewan’s College of
Physicians and Surgeons and the College of Physicians and
Surgeons of Manitoba circulated memos to its members warning
against routine circumcision of newborn boys (CPSS, 2002;
CPSM, 2002). This was part of a broad-based educational
strategy to raise professional and public awareness about the
risks of routine circumcision. Shortly thereafter, the
College of Physicians and Surgeons of British Columbia began
its own review of the procedure. It determined that infant
male circumcision is ultimately a matter of parental choice
(based on tradition, culture, religion, or personal
preference) and that the procedure should be regarded as
“cosmetic” (2002, p. 2). Even so, the College
Council has not identified any need to place restrictions on
the availability of elective infant male circumcision.
However, it issued a notice that circumcision should be
considered only after detailed discussion with the parents,
explaining that neonatal circumcision is not a medical
necessity, that currently the majority of boys are not
circumcised, that a number of pediatric associations do not
recommend the procedure, and that there are potential short-
and long-term risks resulting from the procedure.

Despite shifts in the discourses adopted and
reinforced by the Canadian medical community and the
international medical community (American Academy of
Pediatrics, 1999; Australian College of Paediatrics, 1996;
British Medical Association 1996; Canadian Paediatric
Society, 1996), routine neonatal male circumcision remains
fairly normalized. Focusing on the Canadian context, this
paper outlines the health-based and legal arguments against
elective infant male circumcision. Part one provides an
overview of routine neonatal male circumcision and deals with
the crucial distinction between therapeutic and
nontherapeutic intervention. It locates elective neonatal
male circumcision within the nontherapeutic category. Part
two outlines the theoretical underpinnings for medical
consent in the Canadian context and discusses the legal
requirements for “informed consent.” The aim of
part three is to tease out issues of parental consent and
question whether parents should be entitled to substitute
consent for medically unnecessary, routine neonatal
circumcision.

With this in mind, an important caveat is in
order. The debate surrounding both male and female
circumcision demonstrates the struggle between respect for
cultural differences and universal human rights (i.e., Braver
Moss, 1991; Slack, 1988). Without doubt, a more thorough
analysis of the balancing of ethnic and cultural traditions
and the protection of individuals from harmful cultural
practices is needed. However, such an endeavour is beyond the
scope of this paper. For this reason, the discussion will
focus on nonritual, nontherapeutic neonatal circumcision.
Nevertheless, the discussion is framed in such a way as to
acknowledge the cultural dynamics at play and respectfully
listen to multiple perspectives in order to better grapple
with this complex issue.

Page 207

PRELIMINARIES:
LOCATING NEO-NATAL CIRCUMCISION

Routine neonatal circumcision is the most
common nonmedical surgical intervention carried out in the
United States (Cendron, Elder, & Ducket, 1996). In
Canada, elective neonatal circumcision is performed as a
primary procedure on less than 10% of the male population
(CIRP, 2004). While in the past circumcisions were routinely
performed without the consent of the infant’s parents
or guardians, today “routine” neonatal
circumcision is an elective procedure that requires
parental consent (Le Bourdais, 1995; Oh & Merenstein,
1997). Traditionally, the procedure did not include
anaesthesia, due to the belief that infants did not feel pain
because their nerves were not completely myelinated (Cope,
1998). Today, however, most medical practitioners will inject
a local anesthetic into the penis or use a topical
anaesthetic cream (AAP, 1999).

The procedure generally unfolds as follows.
The fully conscious newborn is restrained while tissue is
incised from the tip of the penis using instruments such as
probes, clamps, and scalpels (Cohen, 1992; Gelbaum, 1993).
Circumcision entails an incision over the circumference of
the tip of the penis and the removal of the penile foreskin
(prepuce), which exposes the gland underneath (Boyd, 1998;
Boyle et al., 2002). The method most often used is direct
surgery whereby the foreskin is held away from the glans with
a clamp. Then

[one] blade of a scissor (or a scalpel) is
inserted between the foreskin and glans and the foreskin is
first cut along its full length.... The incision is spread
apart to expose the glans. Then, using a scalpel or
scissors, the foreskin is completely cut off close to the
groove. (Romberg, 1985, p. 91)

Some parents justify the procedure for
aesthetic reasons (Chessler, 1997) or to spare their sons
from “feeling embarrassed” for looking different
from others (Patel, 1996, p. 5). However, most proponents of
circumcision see it as a preventative healthcare measure;
namely, it does not allow for smegma (a sebaceous secretion
that collects under the prepuce) to accumulate under the
foreskin (Schoen et al., 2000). Circumcision is also believed
to reduce the likelihood of urinary tract infections
(Canadian Paediatric Society, 1996; Herzog, 1989; Schleupner,
1997; Schoen et al., 2000). Some researchers have found that
circumcision decreases the spread of HIV/AIDS and other
sexually transmitted diseases. They found that mini-abrasions
of the foreskin during intercourse increase the risk of
uncircumcised men acquiring certain STIs (Cardwell &
Cardwell, 1996; Weiss et al., 2000). There is evidence that
it provides protection against penile cancer as well as
cervical cancer in female sexual partners (Rivet, 2003;
Schoen et al., 2000). Moreover, there are a number of
researchers who have found that the risks of circumcision are
remote and insufficient to override a parent’s decision
to have their son undergo the procedure (Ottem, 1996). Note
that circumcision in adulthood is a more complex procedure
than surgery upon infants because the infant’s foreskin
is approximately half the size of what it will be in an adult
male’s penis (Cuckow, Rix, & Mouriquand, 1994). In
Canada at

Page 208

least one man who has suffered grave
injuries as a result of circumcision sought compensation in
tort but was unsuccessful (Sanzana v. Wiggens,
1998). At trial, the judge found that “unhappiness with
the cosmetic results in the circumstances” was not a
compensatable injury (1998, p. 2391). Further, Mr. Sanzana
had not established a causal connection between the pain
alleged and the circumcision. However, in Voorthuyzen
v. Orovan (1988), the plaintiff underwent a
circumcision to relieve paraphimosis, a condition whereby the
foreskin becomes trapped behind the corona and forms a tight
band of constricting tissue. He argued that the doctor had
removed an excess amount of penile skin, and as a result the
patient’s penis was foreshortened and he suffered
considerable sexual dysfunction and depression. The Ontario
High Court found that the physician had met the standard of a
reasonably competent urologist. The court nevertheless
awarded the plaintiff $15,000 in general damages for loss of
income and $5,000 to his spouse under Ontario’s
Family Law Reform Act for loss of care, guidance, and
companionship.

With this in mind, the circumcision of adult
men will not be the focus of this discussion. Suffice it to
say, a competent adult can give “informed
consent” to the deliberate infliction of actual bodily
harm such as tattooing (Bibbings & Alldridge, 1993) so
long as it does not offend public policy. For instance,
female genital mutilation was found to be against public
policy, and the Canadian Criminal Code was amended to
include section 268(3). In addition, adults may not consent
to have nontherapeutic and harmful interventions carried out
on their children. What follows then are the arguments that
locate neonatal elective circumcision within the type of
procedure to which adults may not legally provide consent by
proxy. The issue is important given the potential health
risks to infant males when circumcision is performed on
them.

ROUTINE NEONATAL CIRCUMCISION:
A HARMFULAND NONTHERAPEUTIC PROCEDURE

Circumcised penises are not normal. They are
mutilated. (Lewis, 2003, p. 1)

There has been increased international
interest among lawyers, human rights activists,
children’s rights proponents, mental health
practitioners, ethicists and men directly affected by the
procedure in the legal and ethical issues surrounding male
circumcision (i.e., AAP, 1999; AAPS, 1996; Boyle et al.,
2002; INTACT, 2002; International Circumcision Information
Reference Centre, 2004; Somerville, 2000; Svoboda et al.,
1999). Apart from a few sociological analyses of the
procedure (Boon, 1994; Campbell, 1991; Sweiden, 1996),
however, most often the debate is approached from a medical
perspective (Harrison, 2002, p. 301). At the core of the
discussion is whether or not routine neonatal circumcision
should be viewed as therapeutic (“treatment”) or
nontherapeutic. This distinction is crucial when addressing
circumcision because it touches upon the issue of
consent.

To begin, a working definition of treatment
may be helpful. Section 2(1) of the Ontario Consent to
Treatment Act (1992), which reflects other similar
provincial legislation, defines treatment as “anything
that is done for a therapeutic, preventive,

Page 209

palliative, diagnostic, cosmetic or other
health-related purpose, and includes a course or a plan of
treatment.” On the other hand, nontherapeutic treatment
is surgery for other than standard medical purposes
(Butterworth’s Medical Dictionary, 1978, p. 1700;
J.W.B. v. S.M.B., 1992, p. 226). Although common law
once prescribed that only a therapeutic aim could justify
“wounding” through medical intervention
(Somerville, 1981), today nontherapeutic intervention is
legal so long as the subject is capable of giving and has
given informed consent and that the intervention does not
offend public policy (Attorney-General’s
Reference, 1981). To this end, a number of authors have
concluded that elective neonatal male circumcision is in fact
a form of nontherapeutic procedure (Boyle et al., 2002) that
is not justifiable by law (Somerville, 1981, 2000).

CIRCUMCISION IS HARMFUL

Routine neonatal circumcision continues
despite increasing ethical concerns about consent as well as
medical concerns about its physical and psychological
consequences. It is the latter that is the focus of this next
section.

To recognize the significance of the
potential harm of this procedure, it is helpful to discuss
some anatomical and physiological issues. The foreskin is a
highly vascular and sensitive piece of body tissue that
covers the glans of the penis. It contains mucosal glands,
which secrete lubricants and protective antibodies, and
enhances sexual stimulation because of the extensive
concentration of nerve endings in the foreskin and its wide
range of skin movement during intercourse (Taylor et al.,
1996). Removal of the foreskin destroys the gliding action of
the penis, and the overall effect of circumcision is the
removal of highly erogenous tissue (Crawford, 2002; Gairdner,
1949; Goodwin, 1990; Harrison et al., 1997; Taylor et al.,
1996).

There is growing opposition to the practice
on the grounds that it is medically unwarranted (Boyle et
al., 2002; Gairdner, 1949), scientific accounts of its
benefits are often methodologically and analytically flawed
(Australian College of Paediatrics, 1996), and it is in and
of itself harmful (Somerville, 2000).

A few Canadian decisions have dealt with
complications resulting from circumcision, although none has
gone before the Supreme Court of Canada. First, in Gray v.
LaFleche (1950), a circumcision performed by a doctor was
so unskillfully done that the six-day-old infant sustained
severe and permanent injuries to the glans. A second doctor
examined the infant. The penis was covered with granulated
tissue, was slightly retracted and flattened, and had no tip.
The Manitoba court of Queen’s

Page 210

bench found that the child was entitled to
damages for having to go through life with a deformed penis
that could decrease his pleasure during coitus and diminish
his chances of marriage. In Bera v. Marr
(1988), a young man’s penis was left
“deviated” following circumcision. The court held
that the doctor had not exercised the skill required by a
physician for this procedure. In awarding damages, the trial
judge considered the psychological trauma that resulted from
years of humiliation and teasing. General damages were
assessed at $40,000.

Moreover, since the early 1990s, there has
been a burgeoning of anti-circumcision groups throughout the
West, including the Association for Genital Integrity (which
is currently challenging Section 268 of the Criminal
Code as failing to protect male children), the National
Organization to Halt the Abuse and Routine Mutilation of Men
(NOHARMM, a direct-action men’s network concerned with
circumcision), the International Coalition for Genital
Integrity (which publishes a news feed for research on the
issue of genital integrity), the National Organization of
Restoring Men (NORM-UK, a British group engaged in public
education about the foreskin and alternative treatments for
foreskin problems), and the National Organization of
Circumcision Information Resource Centers (NOCIRC). There is
also vocal opposition from various professional associations
such as Doctors Opposing Circumcision (DOC), Attorneys for
the Rights of the Child, and Nurses for the Rights of the
Child. The lack of medical indication of the procedure has
been acknowledged by provinces such as Nova Scotia (1997) and
Saskatchewan (1996), where it has been removed from the list
of publicly insured medical services (Cameron v.
Nova Scotia, 1999).

The harm caused by routine neonatal
circumcision is outside the de minimis range
(Somerville, 2000), and the procedure should not fall within
the exceptions justifying nontherapeutic medical
intervention. This is particularly important given that a
male infant himself cannot provide consent.

CIRCUMCISIONAND ISSUESOF CONSENT

The following section outlines the law of
informed consent in Canada as it pertains to medical
treatment. It begins with a consideration of the theoretical
underpinnings of Canada’s approach to issues of
consent. It goes on to examine the exceptions to consent,
such as when a patient is unable to provide informed consent
on her or his own behalf. In thinking about elective neonatal
male circumcision, a situation in which an infant cannot
possibly provide consent himself, it is also important to
understand when consent can or cannot be substituted by a
parent or guardian. An overview of this law is provided.
Finally, the interplay between parental rights to give
consent and a child’s security of person as guaranteed
under the Canadian Charter of Rights and Freedoms is
considered in the context of routine neonatal
circumcision.

THE THEORETICAL UNDERPINNINGSOF
CONSENTINTHE MEDICAL CONTEXT

According to the Supreme Court of Canada,
essential to the idea of consent is the principle that
individuals have the right to determine what is to be done
with and to their bodies. As Laskin J. states in Hopp
v. Lepp, “[t]he underlying principle is the

Page 211

right of a patient to decided what, if
anything should be done with his [or her] body (1980, p.
661). In White v. Turner, Linden J. adds that
“the law . . . requires that patients be treated as
intelligent, mature, and rational individuals” (1982,
p. 764). Moreover, in Norberg v. Wynrib,
Justice La Forest wrote that consent is based on notions of
liberty, autonomy, and individualism: “It is presumed
that the individual has freedom to consent or not to
consent” (1992, p. 247). This was confirmed in
Ciarlariello v. Schacter (1993), where Justice
Cory held that:

[E]very patient has a right to bodily
integrity. This encompasses the right to determine what
medical procedures will be accepted and the extent to which
they will not be accepted. Everyone has the right to decide
what is to be done to one’s own body.... This concept
of individual autonomy is fundamental to the common law and
is the basis for the requirement that disclosure be made to
a patient. (1993, p. 106)

To this end, the concept of consent and
especially informed consent is at its core intended to
protect the individual’s right to “security of
the person” as contained in Section 7 of the
Canadian Charter of Rights and Freedoms, which reads:
“Everyone has the right to life, liberty and security
of the person and the right not to be deprived thereof except
in accordance with the principles of fundamental
justice.” Canadian medical law is fundamentally
concerned with the issue of consent. It is a well-known
common-law rule that a physician or healthcare provider may
not engage in medical treatment or even touch a patient
without his or her consent (Re “Eve,”
1986). It is also well established that a competent adult has
the right to refuse consent for “medically
necessary” treatment (Malette v. Shulman,
1990). As Justice Linden of the Supreme Court of Canada
explained in Allan v. New Mount Sinai
Hospital:

Our law is clear that the consent of a
patient must be obtained before any surgical procedure can
be conducted…. This is not a mere formality; it is
an important individual right to have control over
one’s own body, even where medical treatment is
involved. It is the patient, not the doctor, who decides
whether surgery will be performed, where it will be done,
when it will be done and by whom it will be done. (1980, p.
364)

Moreover, a patient can withdraw consent at
any time during a surgical procedure (Ciarlariello v.
Schacter, 1993). That said, there is an exception to
the general rule of respect for individual’s autonomy
and bodily integrity, the medical emergency. Physicians are
privileged to provide medical attention if required to save
the life or preserve the health of a patient where the
consent of that patient or her or his substitute decision
maker is not readily available (Linden & Klar, 2001, p.
77). For instance, Section 45 of the Canadian Criminal
Code provides that “everyone is protected from
criminal responsibility for performing a surgical operation
on any person for the benefit of that person” as long
as

Page 212

(a) the operation is performed with
reasonable care and skill; and
(b) it is reasonable to perform the operation, having regard
for the state of health of the person at the time the
operation is performed and to all the circumstances of the
case.

However, once the patient has expressly
refused treatment, emergency treatment as well as continued
treatment constitutes a battery (Fleming v.
Reid, 1991; Malette v. Shulman, 1990).
Let us now examine more closely the doctrine of
“informed consent.”

THE LAW OF INFORMED CONSENT:
AN OVERVIEW

In Canada, the common-law rule is that no
legal wrong is done to an individual who consents to the
intentional invasion of his interests (Linden & Klar,
2001, p. 65). Consent provides permission to engage in
conduct that would otherwise result in liability for an
intentional tort. As such, explicit or implied consent is a
full defense to intentional torts. Consent is implied, for
instance, when a court authorizes a medical procedure against
the wishes of the patient. This was the case, for example, in
Institut Philippe Pinel de Montreal v. Dion
(1983), where the Québec Superior Court implied
consent to a patient found to be unfit to stand trial. The
patient was being forced to undergo drug therapy determined
by health professionals to be needed in order to prevent
mental deterioration. In order to give valid explicit
consent, the following criteria must be met: consent must be
voluntary and genuine and is vitiated if

obtained under duress or pressure,

obtained by fraud or deceit as to the very nature of
the intervention, or

it would go against public policy to allow the
defendant to rely on it.

Moreover, the person consenting must also
have the legal or factual capacity to do so. In short,
consent must be informed, that is, in accordance with
accepted standards for disclosure of information by a
physician to the particular patient (Dickens, 1999;
Norberg v. Wynrib, 1992; R. v.
Cuerrier, 1998; Rozovski, 1997).

Certain legal issues arise when establishing
whether consent is truly informed. In Hopp v.
Lepp (1980) and Reibl v. Hughes (1980)
the Supreme Court of Canada clarified the law of consent and
established the foundation of a new doctrine: “informed
consent.” This doctrine has proven to be of fundamental
importance in the context of legal liability of doctors to
their patients. The Court established principles relating to
(1) the proper cause of action, (2) the standard of
disclosure, and (3) the means of determining causation. In
Reibl, the Supreme Court of Canada established that,
in most cases of medical failure to inform, the cause of
action will be framed in terms of negligence rather than
battery. The elements of negligence are as follows: (1) a
wrongful conduct (a legal duty and a breach of that duty) on
the part of the defendant, (2) causation of harm by the
wrongful conduct, and (3) real harm to the plaintiff (Linden
& Klar, 2001, p. 36). The tort of battery, on the other
hand, protects an individual’s interest in her or his
bodily security from unwanted physical interference that is
harmful or offensive to her or his reasonable sense of
dignity (Malette v. Shulman, 1990;

Page 213

Norberg v. Wynrib, 1992). This
cause of action is confined to cases where there is no
consent due to fraudulent misrepresentation or a
misrepresentation that goes to the very nature of the
procedure (as opposed to incidental risks).

Canadian courts have determined that the
tort of battery is exceptionally serious. Unlike negligence,
a defendant will be found liable for all consequences of a
wrongful conduct, whether intended or not, and regardless of
foreseeability or lack thereof (Linden & Klar, 2001, p.
45; Bettel v. Yim, 1978). To this end, an
action framed in negligence deprives a plaintiff of the
procedural advantages of battery. That is, the onus is on her
or him to establish all the required elements of negligence;
namely, that the defendant physician failed to properly
inform her or him of the material risks involved and that
there has been an actual harm to a legally recognized
interest. Essentially, the plaintiff must establish that,
had she been properly informed, she would not have
consented to surgery and therefore would not have
suffered damages.

In terms of the standard of disclosure, the
Supreme Court of Canada restated its previous decision in
Hopp (1980) that a patient has the right to decide
what will be done to her or his body and a doctor must fully
disclose all material risks of the procedure. To this end, a
patient must be informed about what a reasonable person would
be required to know concerning the procedure in order to
enable her or him to decide whether to undergo treatment.
This is a question of fact, therefore to be determined by a
trial judge rather than by the medical profession (Klar,
1980, p. 76).

The Canadian Supreme Court has adopted a
“modified” objective test for causation: would
a reasonable person in the patient’s position have
consented to the operation where proper disclosure (of the
material risks of the proposed treatment) had been made?
The patient’s subjective circumstances are not to be
ignored, so long as his or her concerns are reasonably based.
As then Chief Justice Laskin states:

In obtaining the consent of a patient for
the performance upon him [or her] of a surgical operation,
a surgeon should generally answer any specific question
posed by the patient as to the risks involved and should
without being questioned, disclose to him the nature of the
proposed operation, its gravity, any material risks and any
special or unusual risks attendant upon the performance of
the operation. (Hopp, 1980, p. 210)

The test is difficult to apply, however.
With this review of informed consent law in the Canadian
context, consider parents’ right to provide consent by
proxy in the case of routine circumcision.

Our society presumes that parents will
exercise their freedom of choice in a manner that does not
offend the rights of their children (per La Forest, J., in
B (R) v. Children’s Aid Society [1995, p. 373]).
Whereas an adult may consent to medical procedures, a child
is often not in a position to do so or simply lacks the
capacity to make such a decision.

Page 214

Many jurisdictions have circumscribed a
minor’s rights to consent to medical treatment. For
instance, a Washington court determined that a minor was not
capable of consenting to having a vasectomy (Smith v.
Seibly, 1967). However, in Planned Parenthood of
Mo. v. Danforth, the American Supreme Court held
that a minor did not need parental consent to procure an
abortion. There is a growing movement advocating the right to
children’s self-determination and their right to decide
whether to undergo treatment (Shield & Baum, 1994). That
said, the basic legal framework in Canada is one that gives
broad legislative and judicial deference to parents since
they are most often the primary caregivers of children and,
as such, are responsible for a child’s rearing,
protection, and education.

Parents are usually given the responsibility
for their children and have the right to make fundamental
decisions regarding their health. Specifically, the Supreme
Court of Canada has determined that:

[t]he common law has always, in the
absence of demonstrated neglect or unsuitability, presumed
that parents should make all significant choices affecting
their children, and has afforded them a general liberty to
do as they choose. (Sheena B.,1995, p. 372)

More recently, the Court relied upon
Professor Nicolas Bala’s argument that, due to
children’s limited personal capacity, society
temporarily confers on them only a limited legal capacity.
This limited legal capacity is not arbitrary and does not
stigmatize children. It is, rather, a reflection of their
actual need, capacity, and circumstances (cited in Law
v. Canada, 1999, p. 37). In the medical context, this
means that a parent or guardian can provide informed consent
in place of a child for medical interventions in cases of
imminent and serious danger to the child’s life or a
vital organ disease, requiring immediate treatment. The
law clearly indicates, however, that parental authority is
limited to “therapeutic treatment,” and thus a
parent cannot, for example, consent to nontherapeutic
sterilization of his or her child (Re
“Eve,” 1986).

The State maintains a right to intervene
when it considers it warranted to safeguard a child’s
autonomy or health or when a procedure is contrary to
“the best interest of the child.” This is
referred to as parens patriae, a common-law concept
founded upon necessity, namely that the State will act on
behalf of those who cannot care for or protect themselves
(Re “Eve,” 1986). The main agent for the
protection of children is the Children’s Aid Society, a
group of quasi-governmental, local organizations. They are
regulated under provincial legislation. In Ontario, the
Child and Family Services Act (1990) sets the formal
legal standard for intervention as a “child in need of
protection.” In Catholic Children’s Aid
Society of Metropolitan Toronto v. M(C) (1994),
the Supreme Court of Canada developed an interpretation of
the “best interest of the child.” Madame Justice
l’Heureux-Dubé, writing for a unanimous bench,
found that the best interest of the child encompasses
“concerns arising from emotional harm, psychological
bonding and the child’s desires” (1994, p.
201).

The “best interests of the
child” test was tightened by Madame Justice McLachlin
in Gordon v. Goertz (1996). In that decision,
she outlined the factors to be considered, limiting them to
all relevant circumstances relating to the child’s
needs and

Page 215

the ability of the respective parents to
satisfy them, and expressly cited the views of the child as a
factor to consider (1996, p. 61). To this end, a parent or
substitute decision maker making decisions based on the
child’s “best interests” will be guided by
the following considerations:

Is the condition of the child likely to be improved by
the treatment?

Will the child’s condition deteriorate without
the treatment?

Are the anticipated benefits from the treatment
outweighed by the risks of harm to the child?

Is the treatment the least restrictive and least
intrusive treatment that meets the first three criteria?
(Fleming v. Reid [Litigation Guardian],
1991)

PARENTAL CONSENTINTHE CONTEXTOF CIRCUMCISION

Where a parent or substitute decision maker
has deemed that it is in the child’s best interest to
undergo a treatment, there may be some conflict between that
privilege and the fundamental right to security of the person
protected under Section 7 of the Charter. Because the
State’s power to intervene is broad and can be
permanent, parental decision making has been protected under
the Charter. Nevertheless, the Court has determined
that parents’ rights are not absolute and that the
State will intervene when necessity is demonstrated.

Section 7 of the Charter provides
everyone with a certain degree of autonomy in decisions
concerning their private lives, including those concerning
medical treatment. The protection of the security of the
person is so fundamental that medical treatment administered
without a patient’s informed consent may amount to
battery. In the context of circumcision, if a medical
practitioner performs routine neonatal circumcision without
an infant’s parental consent, that practitioner may be
liable for criminal assault as well as for damages for any
harm that resulted from her or his negligence (Somerville,
2000).

Given that a portion of the medical
community has agreed that routine male circumcision is
nontherapeutic and that it may be in and of itself be a
harmful practice, it is arguable that when performed on
neonates for nontherapeutic reasons, it amounts to a
violation of the child’s Section 7 rights. As stated at
the Declaration of the First International Symposium on
Circumcision, “parents and/or guardians do not have
the right to consent to the surgical removal or modification
of their children’s normal genitalia.” The
Declaration adds that the only person who may consent
to medically unnecessary procedures upon herself or himself
is that individual, having reached a stage in life
where she or he can consent and only upon being fully
informed about the risks and benefits of the procedure. Note,
however, that the Declaration is not a binding legal
instrument.

In the United States, a case challenging the
institution of routine neonatal circumcision was brought
before the Superior Court of California. The plaintiff
attempted to invoke protections similar to the rights
protected under Section 7 of the Canadian Charter. In that
case, the mother had signed a consent form which expressly
stated that the procedure was of no medical purpose. The
issue was whether a parent was capable at law to consent
to a surgical procedure without

Page 216

medical purpose. The California
Superior Court found for the defendant, and this was upheld
upon appeal.

The mother of Adam London began a suit ad
litem for her son against the physician who performed the
circumcision and the medical facility where it was performed.
The plaintiff alleged eight separate causes of action among
which include: (1) common-law battery, (2)
violation of willful cruelty statute (Penal Code
273a), (3) violation of The Infliction of Pain Statute
(Penal Code 273d), (4) violation of the Willful Cruelty
Statute (Health and Safety Code 11165; Penal Code
ss.273(a)(1) and 273 (a)(2), and (5) violation of the
Child Abuse Statute (Health and Safety Code 11165). The
few Canadian cases dealing with circumcision have been
equally unfavourable.

For example, in Oliver v. Paras
(1993), an infant’s penis was horribly disfigured after
a circumcision was performed at his parent’s request.
The parents were not informed of the possible risks or of the
substantial body of opinion against circumcising neonates.
The action for malpractice was dismissed, however, because
having taken into account “the popularity in our
society of what D. Paras refers to as a semimedical
procedure,” Justice McLellan was “unwilling to
hold that the usual rules for informed consent for surgery
apply to the circumcision of the baby” (1993, p.
60).

CONCLUDING THOUGHTS

Since circumcision is medically
unwarranted mutilation and disfigurement, it would appear
to be a clear case of child abuse.
(Brigman, 1985, p. 343)

Only in rare circumstances can it be said
that circumcision has a therapeutic aim. In fact, in many
cases, circumcision can be considered “the antithesis
of therapy” (Somerville, 1980, p. 85). Where there is
doubt as to the medical benefits of circumcision, that is,
where the physician cannot justify medical wounding, it
should not be performed. Therefore, the burden is on the
person who causes the wounding to establish justification for
carrying out the procedure. Unless the physician can
establish this, even with the parents’ “informed
consent,” she or he should not proceed. Postponing the
procedure until a time when the infant can be more active in
the decision-making process seems a viable solution. As the
College of Physicians and Surgeons of Saskatchewan has
recently stated:

Informed consent to a surgical procedure
rests on an assumption that the decision maker possesses
full and accurate information about the benefits and risks
of the procedure. The issue becomes whether surgeons are
providing parents with accurate and sufficient information
about the benefits and the risks involved with the routine
circumcision in order to allow them to provide meaningful
and informed consent. (2002, p. 12)

To this end, nonreligious circumcision that
is not medically necessary should be put off until the boy is
mature enough to understand all the material risks and
provide his

Page 217

own “informed consent.” In the
interim, however, as Smith (1998) argues, parents should be
fully informed about the function of the foreskin, the pain
and possible risks involved in the procedure, and arguments
for and against circumcision in order to make the best
possible decision for their child. Moreover, education and
dialogue are essential to the circumcision debate. Public
awareness is increasing, as evidenced by the numerous
parents, health practitioners, children’s rights
activists, ethicists, lawyers, and concerned citizens who
have voiced their opinion. Insofar as male circumcision is
the removal of healthy erogenous flesh without medical
purpose and without the consent of the child and given that
it is a painful procedure, neonatal circumcision is
unnecessary and may well violate a child’s bodily
integrity.